Date: 20061006
Docket: IMM-1402-06
Citation: 2006
FC 1195
Ottawa, Ontario,
October 6, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MARGARET
OWUSU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
It was the
20th of May 1997, the day Margaret Owusu married her old sweetheart,
Frank Acheampong, in Kumasi, Ghana. It was a bittersweet day for Margaret.
After going out with Frank for years, she ran away to Canada. She married here. Her husband turned
out to have a cheating heart. It did not work out. They divorced. She called
her mother and told her how lonely she was. She asked her to call Frank to see
if he was still single and interested. He was; and he was. The circle was not
broken.
[2]
Unfortunately,
Margaret’s mother died three days before the wedding was to take place.
However, on her death bed she insisted that Margaret not postpone it. She did
not. Since then, Margaret has tried to sponsor Frank into Canada. The third secretary (Immigration)
at the Canadian Embassy in Accra dismissed the application. He
was of the view that the marriage was not genuine; that its prime purpose was
to gain Frank’s admission into Canada. The Immigration and Appeal
Division (IAD) of the Immigration and Refugee Board (IRB) came to the same
conclusion. This is a judicial review of that decision. In my opinion, the
decision was patently unreasonable, is therefore quashed and is to be sent back
to a new IAD panel for reconsideration.
THE FACTS
[3]
Margaret
and Frank met in the late 1980s. He was 27 and she was 25. They lived in the
same town, they spoke the same language and they went to the same church. They
went out together for about three years, and were quite serious; everyone says
so. Then suddenly she ran away. She did not tell him where she had gone.
[4]
Margaret
had become involved in a women’s political movement. She decided the movement
was involved in corrupt activities leading up to an election. She would not go
along. Fearing persecution, she fled to Canada in 1991, and claimed refugee status. She
was unsuccessful.
[5]
However,
within the Ghanian community in Montreal
she met and married. Her husband was unable to sponsor her from within Canada, so
she went to New
York where she
remained a few years. Her husband would visit regularly. However, once she
returned here as a landed immigrant in 1995 she quickly found out that he had a
mistress on the side, a mistress pregnant with his child. The marriage broke
down, and they divorced in 1996.
[6]
It was
after this that she had her mother call Frank. The resulting marriage took
place under the (Ghana) Customary Marriage and Divorce
(Regulation) Law, 1985. This is a meeting of families, and it is not necessary
for the bride and groom to be present. Margaret had a low-paying job and had
not planned on attending the wedding.
[7]
Then her
mother suddenly fell ill and died. However, she had insisted that Margaret not
postpone the wedding. Margaret did arrange, however, to go to the funeral which
by tradition takes place forty days after death. She lived with Frank for forty
days and forty nights, before returning to Canada.
[8]
She did
not immediately apply to sponsor him. While she was out of Canada, she lost her steady job and
it was only in 1999 that she thought she had sufficient resources to go ahead
with the application.
[9]
It was two
years after that that Frank was interviewed in Accra with the assistance of an English/Twi
interpreter. The agent was not satisfied that the marriage was genuine and so
rejected the application. It is not necessary at this stage to set out the
reasons for his decision, as it was appealed to the IAD. Although that appeal
was de novo and new witnesses could be heard, the panel came to the same
conclusion, and for much the same reasons. Frank was not re-interviewed, but
the notes of his earlier interview formed part of the record. Margaret testified
before the IAD in Montreal.
REASONS FOR THE DECISION
[10]
The panel
found that Margaret and Frank were not credible because of unresolved
inconsistencies and contradictions. The panel thought Frank should have known more
about Margaret’s life in Canada. Although he knew she was a
seamstress, he did not know if she was self-employed or not. “He forgot the
location of her last vacation” (there is no evidence she had a vacation). He
could not name any of her friends and did not know how she spent her leisure
time. He did not know how long she was married to her first husband. He was
reticent about disclosing the precise nature of their relationship before she
left Ghana, other than to say that he
knew he loved her then, and that he loved her now.
[11]
Margaret said
that when she fled Ghana in 1991 she told her mother
not to tell Frank where she was, or why she left, and that they only got in
touch together after her divorce when she asked her mother to approach him.
Frank says they began communicating in about 1993. He never asked her why she
had left Ghana.
[12]
While the
panel accepted that Margaret did not have to be present at the customary
marriage, and that she did want to attend her mother’s burial forty days later,
it thought that she should have postponed the marriage so that the ceremony
could be performed while she was in Ghana.
[13]
Finally,
new evidence in the form of income tax returns and a certificate of an incorporation
of a company in Ghana by both Frank and Margaret
were not considered sufficient proof of a genuine marriage. The conclusion
therefore was that on the balance of probabilities the marriage was entered
into primarily for the purpose of acquiring a status or privilege under the Immigration
and Refugee
Protection Act. Section 4 of the Regulations thereunder deals with bad
faith family relationships and provides that “…a foreign national
shall not be considered a spouse…if the marriage…is not genuine and was entered
into primarily for the purpose of acquiring any status or privilege under the
Act.”
ISSUES
[14]
The first
issue is the degree of deference to which the panel is entitled. As I have come
to the conclusion that the decision was patently unreasonable, rather than
being simply unreasonable or incorrect, it is not necessary to carry out a
detailed analysis in accordance with the pragmatic and functional approach to
judicial review. Findings of fact in sponsorship matters have been held to be entitled
to deference unless patently unreasonable (Canada
(Minister of Citizenship and Immigration) v. Navarrete, 2006 FC 691, [2006] F.C.J. No. 878
(F.C.) (QL) and Donkor v. Canada (Minister of Citizenship and
Immigration), 2006 FC
1089, [2006] F.C.J. No. 1375 (F.C.) (QL)).
[15]
Why are the
panel’s conjectures patently unreasonable?
ANALYSIS
[16]
Sometimes
it can be difficult to realize that many of our attitudes derive from our own
culture and may not be universally shared. If these attitudes, or biases if you
will, are not recognized, it is impossible to cast them aside and try to walk a
mile in someone else’s shoes. This is what has happened in this case.
[17]
Although
not mentioned, the nature of the questions posed to both Margaret and Frank evoke
the Citizenship and Immigration Canada’s manual CIC OP 2: Processing Members of the Family
Class. Here
are some of the factors immigration officers may take into account:
1. Do the spouses, common-law or conjugal partners have a
good knowledge of each other’s personal circumstances, background and family
situation?
2. The
immigration status of the applicant and the timing of the marriage, common-law
relationship or conjugal partner relationship.
3. Is there
evidence that both parties have planned their immigration or immigration of the
foreign-born spouse/common-law partners or conjugal partner jointly and over a
period of time?
[18]
While
these factors are useful guidelines, they are only that. They must be adapted
to fit the circumstances; the prime one being that Margaret and Frank live
literally an ocean apart.
[19]
The panel
was of the view that Frank should have known much more of Margaret’s personal
circumstances. He should not have been as reticent as he was. He should have
pressed her as to why she left Ghana and obtained more details of
her previous marriage. Yet, there could well be cultural reasons for this, or
shyness on Frank’s part. This lack of inquisitiveness does not take away from
the fact they had a genuine relationship for three years, and that Margaret was
on the rebound.
[20]
As to his
lack of detailed knowledge of her personal life in Canada, the panel, after considering their regular
phone calls, wrote, “we wonder what they talked about and we find it very
implausible that the applicant does not know these important elements about his
wife’s life.” The panel does not seem to have taken into account that these
were expensive transatlantic telephone calls. What was important in their limited
phone time was their relationship, not her friends. Perhaps the panel member hearkens
back to yesteryear with hours on end murmuring sweet nothings over the
telephone to her high school boyfriend!
[21]
As to
postponing the wedding because of Margaret’s mother’s death, no queries were
made of either Frank or of Margaret as to how much money they would have lost
by pushing the date back. Nor did anyone consider whether a close family member’s
death was a customarily accepted reason to delay what had already been put in
place, or that Margaret did not want to shun her mother’s dying wish.
[22]
The panel
did not take into account that Margaret only sponsored Frank two years after
the marriage. This is inconsistent with a marriage of convenience. She felt she
had to get back on her feet financially.
[23]
The panel’s
focus was on this being a marriage of convenience. No thought was given to the
inconvenience to Margaret if the marriage is not genuine. If it is not genuine,
she has deprived herself for nine years of the chance to marry someone else.
Furthermore, absent evidence to the contrary, Quebec law will consider them to
be married in a partnership of acquests, whereby half of Margaret’s assets
gained after marriage belong to Frank. What about division of her Quebec pension plan should they divorce?
The analysis was woefully inadequate.
[24]
Lest it be
said that I am reweighing the evidence, that is exactly what I am doing.
Consider the scales of justice. Reweighing evidence is improper within the
limits of the scale. Those limits are set by the functional and pragmatic
approach to judicial review. The range or swing of deference is narrow if the
scale has been set to correctness, broader if based on reasonableness, and
broader yet if based on patent unreasonableness. In this case, the simplest
probing, or weighing if you will, shows that the decision cannot stand up to
scrutiny (Dr. Q. v. Royal
College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, [2003]
S.C.J. No. 18 (QL) and Law Society of New Brunswick v. Ryan, 2003 SCC
20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17 (QL)).
[25]
As noted
by Lord Wright in Grant v. Australian Knitting Mills, Ltd., [1935] All. E.R.
Rep. 209: “Mathematical, or strict logical, demonstration is generally
impossible; juries are in practice told that they must act on such reasonable
balance of probabilities as would suffice to determine a reasonable man to take
a decision in the grave affairs of life.” Direct evidence is preferable in that
it only contains one possible source of error (fallibility of assertion) while
indirect evidence has, in addition, fallibility of inference (Phipson on
Evidence, 15th Ed., 3rd Suppl., paragraph 1.06).
[26]
There is a
contradiction between Margaret and Frank’s evidence about when they resumed
communication. Margaret says it was only after her divorce when she asked her
mother to approach him. He says they communicated by phone and letter going
back to about 1992. Although it was not patently unreasonable for the panel to
raise credibility concerns, if one was lying, as opposed to misunderstanding, that
fact is not relevant as to whether the marriage is genuine or entered into
primarily to gain Frank’s entry into Canada. It may well be that Margaret was
coy and did not want it known that she was in communication with her old
boyfriend while in New
York. As noted
by Madam Justice Tremblay-Lamer in Awuah v. Canada (Minister of Citizenship and
Immigration),
[1999] F.C.J. No. 1873 (F.C.T.D.) (QL), the credibility issues have to relate
to the matter at hand. A finding either way (and the panel appears to have
preferred Margaret since it mentions in its decision handed down this year that
they had been in communication for nine years, not fourteen as Frank would have
it) adds nothing.
[27]
The panel
engaged in conjecture, which cannot serve as an evidentiary basis for finding that
the marriage was not genuine or entered into “primarily” for the purpose
of acquiring status for Frank in Canada.
Naturally true husbands and wives wish to live together. They, as article 392
of the Quebec Civil Code points out, “owe each other respect, fidelity,
succour and assistance. They are bound to live together.”
[28]
The
distinction between conjecture and inference is most important. As stated by
Lord Macmillan in Jones v. Great Western Railway Co. (1930), 47 T.L.R.
39 at 45 (H.L.):
The dividing line between conjecture and
inference is often a very difficult one to draw. A conjecture may be plausible
but it is of no legal value, for its essence is that it is a mere guess. An
inference in the legal sense, on the other hand, is a deduction from the
evidence, and if it is a reasonable deduction it may have the validity of legal
proof.
[29]
To paraphrase
Mr. Justice Mahoney in Dhillon v. Canada (Minister of Employment and Immigration) (1990), 12 Imm.L.R. (2d) 118
(F.C.A.) and section 18.1 of the Federal Courts Act:
…the [Panel] appears to have drawn
inferences as to the motives and intentions of the [couple] which are not only
unsupported by the evidence but appear to have been capriciously, if not
perversely, drawn.
[30]
Margaret
and Frank are entitled to a new hearing.
ORDER
THIS COURT ORDERS that the application for judicial
review is granted. The matter is referred back to a new panel of Immigration
and Appeal Division of the Immigration and Refugee Board for redetermination.
There is no serious question arising.
“Sean Harrington”
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